Your Right To The Internet

The village square is empty. There you are, soapbox in hand, ready to climb atop and harangue the throngs with your opinions, your call to action. And there’s nobody there. They no longer have to be, as they’re busy on Facebook, or the twitters, or checking their Instagram and Snapchats.

Does that mean the First Amendment demands you be given equal access to the web? After all, if you’re not on it, you can’t be heard. Your voice may not be silent, but your words fall on empty space if there’s no one to hear them. The ACLU has taken the position that equal access to the internet is a right, and the government must provide it.

In a report issued last month titled “The Public Internet Option: How Local Governments Can Provide Network Neutrality, Privacy, and Access for All,” the ACLU calls on cities to build and operate their own broadband networks.

Electricity. Water. Telephone. These services were deemed so essential to life that no one should be denied them. Of course, the homeless don’t count, and you still had to pay for them if you wanted them, but at least the infrastructure was created with public assistance and requirements. Should internet be added to the list as a public utility?

Fair access to high-quality Internet is a constitutional issue because such access is essential to our ability to access and share information, which in turn enables us to shape our political, civic, and social systems. As the internet becomes ever more central to our lives, individuals’ ability to exercise their First Amendment rights depends increasingly on access to online platforms. Unequal online access therefore means unequal power to exercise First Amendment rights.

It has become popular to characterize things we like, things we want, as “rights.” If you squint hard, it all makes enormous sense, since it’s invariably true that the internet is the new village square, the new public forum for discussion. But it was privately created, needed no government money or permission to create its infrastructure, and so exists without the largesse or permission of the politicians. Since its inception, this was considered a pretty good thing, as the folks who built it tended to believe that it was best left to be whatever mankind decided it would be.

The ACLU, however, sees it as a First Amendment deprivation. The argument is curious in that it conflates equal access with equal power to exercise First Amendment rights. You can get on the internet whenever you feel like it, but do you have “equal power” with Lena Dunham, given her Facebook friends, her Twitter followers, her blue tick and name recognition? And yet, are her political opinions more worthy than yours? (Yes, the answer is obvious. Don’t take the cheap shot.)

If you don’t want to strain very hard, you may not consider the failure of the ACLU’s rhetoric and instead embrace its claim to a new First Amendment right. It won’t be free, just as electricity isn’t free. It won’t be equal, because nobody is entitled to be heard by more people than care to listen. But it would be a monopoly owned by the government as a public utility. How does that grab you?

Enrique Armijo, an Elon University law professor, has shown that existing municipal government-run broadband networks in New York City, Chattanooga and Wilson, N.C., as well as others, require subscribers to agree to terms of service that ban speech that the government systems consider “excessive,” “derogatory,” “abusive, or “hateful.”

These obviously are content-based speech restrictions which a government may not impose absent a compelling government interest. Although a government-run system may find it appealing for various reasons to police its network to rid it of speech it considers “abusive” or “derogatory” or the like, as Mr. Armijo has explained, such speech restrictions likely contravene the First Amendment.

The ACLU does admit in its report that the First Amendment prevents “the government from targeting certain ideas or viewpoints for censorship or reduced access.” Thus, it says that municipalities running networks “must ensure that their systems offer equal, uncensored access to the full range of lawful digital content.”

The alternative fear is that private ISPs, without the need for net neutrality, will screw with our content, whether blocking or throttling, or if you prefer euphemisms, fast-tracking their preferred providers. And while this hasn’t yet happened in earnest, there’s no guarantee it won’t. If so, it would be a really big problem, and would impair the ability of new enterprises to break into the market without being crushed by the giants.

But can the government do anything right? Who are you going to complain to when the internet goes out and a civil servant answers the complaint line? On the other hand, it’s true that the First Amendment should preclude the government from using its clout to silence viewpoints if it owned the internet, subject to the categorical exceptions to free speech.

Marco Randazza, upon learning about this idea, was surprisingly supportive.

From a distance, this makes sense. Private ISPs and platforms are under no duty to adhere to First Amendment requirements. If they want to promote some speech and silence other, they’re fully entitled to do so. But then, if the government owned the tubes, would it not seek to tone-police the hate speech so that the free speech of the marginalized was protected without anyone saying mean things in response?

But it would violate the First Amendment, you and Marco say? Great. So sue them. Litigate it. For years. For millions. And maybe, just maybe, you will win. Eventually.

The question is whether you would rather put your trust in the government to control your access to the internet or private companies. If Facebook is the new village square, how can we have equal access if Zuck gets to push the veto button? And regardless of access, our voices will never be equal, but only as loud as we can either afford or they warrant of their own merit.

There will always be marginalized voices. The question is who gets to decide which voices they are, private enterprise, the government or those of us online?

31 thoughts on “Your Right To The Internet

  1. Bartleby the Scrivener

    If your connection to the net is owned by the government, can they monitor your activity in private communications to others? If so, I think I’d rather go through a private carrier (that I suspect also tries to monitor my communications) and use a VPN from a third party that agrees not to monitor said communications (…and thankfully, they cannot (currently) pass a law barring me from using that VPN).

    1. SHG Post author

      Would it work better for you if the government promised, I mean really swore by saying three times, that it wouldn’t monitor your use like it does with bulk surveillance of cellphones. For the children!!! And the terrorists. You aren’t a terrorist, right, Comrade?

    2. Dan

      “If your connection to the net is owned by the government, can they monitor your activity in private communications to others?”

      They do anyway, even though they don’t own the bulk of the infrastructure any more. I don’t see that a municipal-owned utility is going to significantly change things in this regard. The Internet is an insecure network; you can safely assume that any unencrypted traffic is being intercepted by state actors at least, and possibly non-state actors as well. Fortunately, there are many technical measures you can take to mitigate this vulnerability (including a VPN). If you’re moderately tech-savvy, you can even use a script like Streisand to set up your own VPN server in the cloud, so you don’t need to rely on a commercial VPN host.

  2. wilbur

    “Fair access to high-quality Internet is a constitutional issue because such access is essential to our ability to access and share information, which in turn enables us to shape our political, civic, and social systems.”

    I love a good ipse dixit in the morning.

    Just like fair access to high-quality newspapers was a constitutional issue. Oh, wait.

  3. Dan

    The First Amendment requires local governments to build, maintain, and operate broadband networks? Go home, ACLU, you’re drunk*. Which is not to say the idea is a bad one.

    You’re right, of course, that First Amendment litigation (like any other litigation) is lengthy, uncertain, and expensive. But at least it provides some remedy, while there’s none at all with a commercial ISP–they can freely impose content-based restrictions at a whim, with the customers having no remedy at all. Sure, they can switch to a competitor’s service–if there is one one (and in most of the country, there isn’t).

    In addition to subjecting the service to the First Amendment, having it operated by the municipal government would probably leave the service more accountable to its customers than most current commercial broadband service. This may not be the case in NYC, but probably would in most of the rest of the country.

    So, no, trying to argue that it’s a constitutional mandate is just idiotic–but it may be a good thing to do.

    * It’s a particularly bizarre suggestion, as no public utilities are constitutionally required, and most are not operated by any branch or level of the government.

    1. SHG Post author

      Every option has its pluses and minuses. That’s the problem and the question. Mileages will vary, and some may call bullshit on the ACLU’s rhetoric, but still think the idea has some merit. Others will disagree. That’s what makes this a great country.

  4. Skink

    A few years ago, both the U.N. and the ACLU claimed people have a due process and equal protection right to water. That was in response to water shutoffs in Detroit, where it seems no one paid their water bills to the government. As the argument went, people have the right, so it must be free.

    If the government controls, will it be free? Will people look away from the obvious threat posed by government control and overreach to get free access? Will they accept shittier service (a given because government) and limited access because it’s free? Them questions are rhetorical–of course they will.

    The question is really why the ACLU would push this agenda. Giving the government control is a direct danger to liberty. That’s something I can’t support. The Zucks of the world are far less dangerous, if only because the business interest requires they play fairer. The government has no interest in playing fair, despite the awesome and holy words in the Amendments.

    1. SHG Post author

      Nothing the govt does is “free.” It’s just alt-paid. A common misperception. As for the Zucks of the world being less dangerous, that remains to be seen.

      1. Skink

        It’s free to those that don’t pay, just like water would be, and people will flock. As for the Zucks, they would have to obtain significantly greater power to approach the tyrannical ability of government. They may get there in the robot war, but they ain’t there,yet.

        1. PseudonymousKid

          I see the parasite has gotten to you, too, Skink. It must be the Zuck brain bug working against you. You gotta fight obsequiousness. What if you didn’t have to bend your knee to either Zuck or the government?

            1. PseudonymousKid

              I don’t care if the king wears a crown or a suit, as long he is a king it’s enough to hang him. Long live democracy, once we achieve it in both government and business.

  5. Ahaz

    I agree, sometimes the ACLU goes off the deep end. I don’t oppose municipalities attempting to create their own public networks, however a common occupance is that the major ISPs at the state level often get laws passed preventing those munis from doing so. This significantly impedes internet access and development in rural areas of the country where the ISPs really have no interest in building out the infrastructure. Perhaps the ACLU spend their dollars in that area.

    1. SHG Post author

      Of course they will, as the ACLU is deeply concerned that the marginalized voices of rural Americans be heard.

    2. wilbur

      I can affirm the ACLU is interested in spending money. When I went to their website from the link provided I immediately was confronted with a plea for money. Because Trump.

  6. TomD

    I don’t see the problem. If somebody wants free internet, xe can just take xis government-issued laptop to Starbuck’s.

  7. Jake

    The ACLU’s just wading into an argument that’s been raging for years.

    Also, you need to check your facts on this statement:

    “But it was privately created, needed no government money or permission to create its infrastructure.”

    1. SHG Post author

      Had the ACLU not been the ACLU, it wouldn’t matter that it was the ACLU. If Jake had issued the same report, it might not be the subject of a post here. I hope that explains why the ACLU taking the position it does matters.

      I was on GOPHER when there was no www. I remember well how it arose, and the govt being a cash and carry user of its own.

      1. Zack

        Ugh. Thanks for making me waste time on Wikipedia. According to that eminent source, SHG’s statement largely checks out. The internet is a network of networks, the vast majority of which are private networks created and connected using private dollars. You can argue about initial research dollars and but for causes if you like that sort of thing. We wouldn’t have microwaves if not for NASA, right?

        The travails of GOPHER actually support SHG, since the University of Minnesota started charging licensing fees for the protocol and everyone switched over to WWW, which that European research agency in Switzerland with a non-English acronym disclaimed ownership of. Then again, both protocols were created by government researchers. Everyone hates nuance, so pick your side and declare yourself correct!

      2. Fubar

        I was on GOPHER when there was no www. I remember well how it arose, and the govt being a cash and carry user of its own.


        Before GOPHER and webs there was TYMNET,
        Cash and carry for all from the outset.
        And the ACLU
        Had no inkling or clue
        What went on there, and that is a sure bet!¹

        FN 1: At least if you ask me. In early 1971 I was programming applications on Tymshare’s SDS (pre-XDS) 940s on the network of 940s from which Norm Hardy created TYMNET later that year. Governments bought time on the network just like everybody else.

  8. Raccoon Strait

    Isn’t it more likely that a platform (a.k.a. Facebook, Twitter, Shapchat, etc.) would be the ones who are taking down posts (a.k.a. censoring) rather than the ISP (in this case the municipally run ISP)? I understand that the MPAA is suing an ISP (Cox) and trying to force them to remove users from their system for the unimaginable ‘crime’ of sharing intellectual ‘property’ (where nothing but imagined income is actually lost to the ‘property’ owner, or rather controller), but the fact is that Cox, and most other ISP’s don’t actually run platforms. The ISP is part of the conduit (the air that reverberates the sound of free speech), not the soapbox or quasi public square (platforms tend to be private, not actually public). This would make the ACLU’s argument for access to platforms, not for free speech at the ISP level, so to speak.

    If the ACLU wants to foment free speech, they should be arguing for an actually public platform, where anyone can spew whatever they want. Then as you suggest, we get to choose whether we want to listen, or not. Of course there would be things on that public platform that shouldn’t actually be there and trying to control that monster would be a headache one wouldn’t wish upon their worst enemy.

  9. MelK

    Sorry, Lord Host, but you make my head hurt. While I concede you have an argument about how the First Amendment applies, you conflate the movie with the video tape. Of course I have “equal power with Lena Dunham, bound by the same constraints as she is: ISP connectivity. Don’t bring up Facebook or twitter, it’s not in the game here. There’ll be a new facebook tomorrow or the next day. There isn’t likely to be a new state or federal government next week.

    If your ability to access court documents, or provide feedback on important government decisions, or get access to the text of laws, rules, and regulations, is limited to channels moderated by the internet, I’d say that yes, your First Amendment rights are implicated if you can’t get online. And more and more, “that’s all available on our web site”.

    1. SHG Post author

      I might agree. I might disagree. I can’t do either since I really don’t know what you’re griping about.

      1. MelK

        I’ll double down, then. My gripe is, there’s “The Internet” [A} – ISPs, wires, net neutrality, and so on. Then there’s “The Internet” [B} – Facebook, Twitter, Clash of Clans, PACER, and so on. The ACLU article, by its title and many of the quotes you pulled from it, is talking about [A]. Yet you throw dust on the trail by waving Facebook and Twitter at us. Some of your esteemed regulars even followed on that. You want to laugh at the ACLU, fine. But address their point.

        As an aside, you don’t mention that when the government does in fact get into the ISP business, the First Amendment comes into play rather directly, kinda incorporating most of the Net Neutrality argument.

        I’ll leave the issue of “government speech through the internet as a First Amendment issue” for another time. It’s a good bit of how the ACLU gets from point B to point A, but too many side issues, not clearly on point here.

  10. MelK

    Bah… rereading, I stand corrected: you do bring up “the govmin’t ownin’ the tubes” as a first amendment issue. You cry, “but it’ll cost Beellions to sue the government and you only might win”. It’d cost the same to sue Comcast, and you’d definitely lose. That’s better?

    1. SHG Post author

      Perhaps the platforms were raised to show that the argument against ISPs doesn’t really pan out when one looks at the big picture. Cutting down a specific tree in the forest doesn’t make the forest go away.

  11. Pingback: First Amendment roundup - Overlawyered

Comments are closed.